Citation Nr: 1829169
Decision Date: 05/25/18 Archive Date: 06/12/18
DOCKET NO. 14-32 145 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland
THE ISSUES
1. Entitlement to service connection for a left wrist and hand disability.
2. Entitlement to service connection for a low back disability.
3. Entitlement to service connection for a left knee disability.
4. Entitlement to service connection for headaches.
5. Entitlement to service connection for tinnitus.
6. Entitlement to service connection for bilateral hearing loss disability.
7. Entitlement to service connection for a sleep disorder.
8. Entitlement to an initial compensable evaluation for deep vein thrombosis.
9. Entitlement to an initial compensable evaluation for left ankle strain.
10. Entitlement to an initial evaluation in excess of 10 percent for right Achilles tendonitis.
11. Entitlement to an initial compensable evaluation for an umbilical scar.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
J. Barone, Counsel
INTRODUCTION
The Veteran had active service from February 1997 to March 2007.
This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.
The issues of entitlement to service connection for a low back disability, a left knee disability, a headache disability, tinnitus, and a sleep disorder; as well as the evaluations of deep vein thrombosis, left ankle strain, right Achilles tendonitis, and an umbilical scar are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. There is no competent evidence of a disability of the left wrist and hand.
2. The Veteran does not have bilateral hearing loss disability for VA compensation purposes.
CONCLUSIONS OF LAW
1. A disability of the left wrist and hand was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017).
2. Bilateral hearing loss disability was not incurred in service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1111, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duty to Notify and Assist
Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).
Analysis
Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b).
Left Wrist and Hand
Service treatment records are negative for any diagnosis, complaint, or abnormal finding referable to the Veteran's left wrist or hand. In her March 2009 claim, the Veteran indicated that her claimed left wrist and hand disability dated to November 2001, and that she was treated at Walter Reed Army Medical Center from 2001 to 2009. However, as noted, careful review of the record is negative for any indication of relevant complaints or findings.
On VA examination in September 2009, the examiner noted that there was no hand problem, and physical examination revealed no impairment of strength or of ankylosis. There was no thumb disorder, and no evidence of fracture.
In essence, there is no indication of chronic disability during service, in the years following service, or currently. The record is silent with respect to any medical diagnosis referable to the Veteran's left wrist and hand, despite the fact that the Veteran has been advised of the evidence necessary to support her claim. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Board acknowledges the Veteran's contention that she has left wrist and hand symptoms; however, a symptom or a finding, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted.
The Court has consistently held that, under the law, a "determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service." Watson v. Brown, 4 Vet. App. 309 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000).
To the extent that the Veteran asserts that she has a left wrist and hand disability that is related to service, the Board observes that she may attest to factual matters of which she has first-hand knowledge, such as subjective complaints, and that her assertions in that regard are entitled to some probative weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). She is competent to report incidents and symptoms in service and symptoms since then. She is not, however, competent to render an opinion as to whether there is a currently existing left wrist and hand disability and whether such is linked to active duty because she does not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
For the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left wrist and hand disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Bilateral Hearing Loss Disability
The United States Court of Appeals for Veterans Claims (Court) has observed that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). However, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017).
In her March 2009 claim, the Veteran stated that hearing loss dated to 2005; however, service treatment records are negative for any diagnosis, complaint, or abnormal finding suggesting reduced hearing acuity.
On VA examination in September 2009, audiometric testing revealed the following puretone thresholds:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
20
15
20
15
LEFT
20
10
10
10
10
Speech recognition scores were 94 percent for the right ear and 100 percent for the left. The examiner indicated that hearing was clinically normal bilaterally.
Having reviewed the record, the Board has determined that service connection for bilateral hearing loss disability is not warranted. In this regard, the Board observes that the evidence does not reflect puretone thresholds at 40 or greater in any relevant frequency, or 26 or greater in three or more relevant frequencies, or speech recognition scores less than 94 percent. As noted, VA regulations require that hearing loss be reported at a certain level before it will be considered a disability for compensation purposes. In this case, the record does not demonstrate that the Veteran has bilateral hearing loss disability as defined by VA regulations.
The Board acknowledges the appellant's report a decrease in hearing acuity during service. However, in the absence of proof of a present disability as defined by VA regulations, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer. Accordingly, the claim of entitlement to service connection for bilateral hearing loss disability must be denied.
ORDER
Entitlement to service connection for a left wrist and hand disability is denied.
Entitlement to service connection for bilateral hearing loss disability is denied.
REMAND
Service Connection - Low Back, Knee, and Headaches
A March 2014 VA Form 21-2507a, Request for Physical Examination, indicates that VA spine, knee and leg, and neurological (headache) examinations were requested. A letter was sent to the Veteran in March 2014 advising her that examinations had been requested and that she would be contacted by the examining VA facility with information concerning her appointments. The record does not contain the actual notification by the VA facility advising the Veteran of her appointed examinations.
On May 8, 2014, the AOJ received documents from the Washington VA Medical Center (VAMC) indicating that scheduled spine, knee and leg, and neurological examinations had been canceled. These documents indicate that they were printed on April 18, 2014, but do not otherwise indicate the reason that the examinations were canceled (i.e., failure to report, request for rescheduling, etc.).
A July 2014 Statement of the Case (SOC) indicates that notification of the Veteran's failure to report for examinations was received from "LHI" on May 2, 2014. This documentation of the Veteran's failure to report is not in the record for the Board's review.
Because evidence of notification of the requested examinations is not of record, and the reason for cancellation of the Veteran's examinations is unclear, the Board concludes that documentation of the examination notice as well as the May 2, 2014 notice from "LHI" must be added to the record.
If the Veteran's failure to report for scheduled examinations cannot be verified, she should be afforded an additional opportunity to report for such.
Service Connection - Tinnitus
The March 2014 VA Form 21-2507a, Request for Physical Examination, also indicates that a VA audiological examination was requested. The July 2014 SOC notes that an examination was conducted by "LHI" on May 1, 2014 and that the report of that examination was reviewed electronically. The AOJ noted that an opinion was provided regarding the etiology of the Veteran's claimed tinnitus. The Board is unable to locate this opinion in the record. Notably, a May 1, 2014 C&P examination note indicates "Please see the attached image from LHI for the Audio Exam." This opinion report must be added to the electronic record for review.
Service Connection - Sleep Disorder
Service treatment records reflect that in April 2005, the Veteran reported that she was prescribed an antidepressant and a sleeping pill. This raises the question of whether a sleep disorder was present during service, and if so, whether there is a relationship between the currently claimed sleep disorder and service. As such, an examination is warranted.
Evaluation of Deep Vein Thrombosis
The Veteran's DVT is evaluated pursuant to 38 C.F.R. §4.104, Diagnostic Code 7121, for post-phlebitic syndrome of any etiology. The record reflects that, during service, she was diagnosed with a pulmonary embolism in April 1998, and with right arm phlebitis in May 2005 and right leg phlebitis in June 2005. She was prescribed anticoagulant mediation. VA treatment records indicate that she is maintained on anticoagulation medication.
VA examination in September 2009, the examiner did not address whether there was edema of the Veteran's extremities, or whether there were other findings attributable to venous disease. An additional examination is necessary to determine the severity of this disability.
Evaluation of Left Ankle Strain
The Veteran is in receipt of a noncompensable evaluation for her left ankle disability, pursuant to 38 C.F.R. §4.71a, Diagnostic Code 5299-5271. This criteria provides a 10 percent evaluation for moderate limitation of motion of the ankle, and a 20 percent evaluation for marked limitation of motion. The Board notes that, while VA examinations were carried out in September 2009 and November 2009, neither of the examination reports reflects that range of motion testing was conducted. Absent a full examination, to include range of motion testing, the Board is unable to determine the severity of the Veteran's left ankle disability.
Evaluation of Right Achilles Tendonitis
Service connection for a disability characterized by the AOJ as right foot pain was granted in March 2010. At that time, the AOJ acknowledged in-service treatment for a painful toenail and right foot tendonitis, and a VA examination revealing Achilles tendonitis.
On VA examination in August 2014, the examiner indicated that the Veteran did not have a current diagnosis associated with her complaints of right foot pain.
Following the August 2014 examination, the AOJ issued a rating decision that granted service connection for Achilles tendonitis which it noted was previously rated as pain of the right foot. A 10 percent evaluation was assigned, pursuant to the criteria for evaluation of metarsalgia, 38 C.F.R. §4.71a, Diagnostic Code 5279. The Board notes, however, that metatarsalgia refers to the sole of the foot behind the toes, and that the Achilles tendon is a band of fibrous tissues that connects the calf muscles to the heel. Thus, it is unclear whether the diagnostic code under which this disability is currently rated is most appropriate. In this regard, it is also unclear whether there is in fact pathology of the Achilles tendon, and if so, its severity. An examination is necessary to address these questions.
Evaluation of Umbilical Scar
Service treatment records reflect that the Veteran underwent laparoscopic surgery in March 2004, which included revision of a scar. On VA general medical examination in September 2009, a superficial umbilical scar was noted. The examiner indicated that it was not painful. However, in her October 2009 notice of disagreement, the Veteran argued that this scar was in fact painful. A VA scars examination should be conducted to determine the severity of this disability.
Accordingly, the case is REMANDED for the following action:
1. Obtain and add to the electronic record a copy of the notice to the Veteran of the examinations requested by the AOJ in March 2014.
Obtain and add to the electronic record a copy of the notice of the Veteran's failure to report for spine, knee and leg, and neurological (headache) examinations, which the July 2014 SOC indicates was received from "LHI" on May 2, 2014.
If proper notification to the Veteran of the scheduled examinations cannot be verified, or if cancellation of the examinations on the basis of the Veteran's failure to report cannot be verified, the Veteran should be afforded an opportunity to present for these examinations.
2. Obtain and add to the electronic record the opinion regarding the etiology of the Veteran's claimed tinnitus, which was noted by the July 2014 SOC indicates was obtained from "LHI" on May 1, 2014.
If this report cannot be obtained, the record should be forwarded to a qualified clinician for an opinion regarding whether it is at least as likely as not that the Veteran's claimed tinnitus is related to service.
3. Schedule the Veteran for a VA examination to determine the etiology of her claimed sleep disorder.
The claims file must be made available to the examiner.
All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.
Following review of the record and examination of the Veteran, the examiner should indicate whether a diagnosis of any sleep disorder is appropriate. Then the examiner should provide an opinion with respect to whether it is at least as likely as not (50 percent or more probability) that any such disorder is related to any event of service.
The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.
Review of the entire record is required; however, the examiner is asked to specifically address service treatment records showing the Veteran's report of being prescribed a sleep aid.
If the examiner is unable to offer any of the requested opinions, a rationale for the conclusion that an opinion cannot be provided without resort to speculation should be provided, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.
The complete rationale for any conclusion reached should be provided.
4. Schedule the Veteran for a VA examination to determine the severity of her deep vein thrombosis.
The claims file must be made available to the examiner.
All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should identify all signs and symptoms of venous disease.
5. Schedule the Veteran for a VA orthopedic examination to determine the severity of her left ankle strain and right Achilles tendonitis.
The claims file must be made available to the examiner.
Any indicated diagnostic tests and studies should be accomplished.
All pertinent symptomatology and findings should be reported in detail, including range of motion (ROM) testing. The examiner should set forth the Veteran's range of motion findings and note any pain, pain on use, weakness, incoordination, or excess fatigability. If feasible, the examiner should portray any additional functional limitation due to these factors in terms of degrees of additional loss of motion. If not feasible, this should be stated and discussed in the examination report. If the Veteran does not have pain or any of the other factors, that fact should be noted as well.
The examiner should also test the range of motion of in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
6. Schedule the Veteran for a VA examination to determine the severity of her service-connected umbilical scar.
The claims file must be made available to the examiner.
All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should identify all signs and symptoms associated with the Veteran's service-connected umbilical scar.
7. Review the VA examination reports to ensure that they are responsive to and in compliance with the directives of this remand; if not, the AOJ should implement corrective procedures.
8. Then, readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, she and her representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012).
______________________________________________
DONNIE R. HACHEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs